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Ex-Wife’s Alimony Can Be Cut Off for Cohabitation, Only If Continues

Tennessee transitional alimony modification case summary.

Monica A. Davalos (Dale) v. Douglas C. Dale

The husband and wife in this Hamilton County, Tennessee, case were married in North Carolina in 1998 and had two children.  In 2018, they divorced, and the husband was ordered to pay $1000 per month in transitional alimony, which was to terminate in 2029.  The order provided that this alimony would terminate if the wife remarried or cohabitated with a third person.

In 2021, the husband filed a motion to terminate the alimony.  He alleged that the wife had been cohabitating with her father since early that same year.  The husband also alleged that the wife had accessed her retirement funds, which he asserted was an additional ground for terminating alimony.  The wife denied the allegations, and a hearing was held in 2022 before Judge W. Jeffrey Hollingsworth.

The wife testified that she was living on a ranch property in New Mexico which consisted of two dwellings.  One was a modular home where her father and stepmother lived.  The other was a 100-year-old adobe house in which she resided.  This building had no electricity and required cooking on a wood stove.  She testified that she paid the electric bill for the father’s house, and usually ate dinner with them every night. She also testified that she took showers there.  The two dwellings had different street addresses.  But one exhibit introduced at trial was her driver’s license, which showed the address of the parent’s house.  The wife also testified that she had purchase another house two minutes away from the ranch.

The trial court first denied the husband’s request based upon the access of retirement funds.  but it found that while the wife had spent considerable time at the adobe home, she also spent extensive time at the parents’ house.  It also noted that the parents paid no rent, and that she had given them a car.

For these reasons, the court concluded that she was cohabiting with a third person, and was no longer eligible for the alimony.  It also ordered the wife to repay eleven alimony payments made during the time she was cohabiting.  The wife then appealed to the Tennessee Court of Appeals.

The wife first argued that she should have been allowed to present rebuttal testimony, but the appeals court disagreed that this was grounds for reversal.  In particular, it noted that her attorney had failed to object at trial.  It also noted that all of the relevant issues had been addressed in the opening case.

The wife next argued that the lower court abused its discretion in ruling as it had, and had failed to make the required factual findings.  On the actual issue of cohabitation, the appeals court noted that this is a factual ruling with a presumption of correctness.  The appeals court pointed out that the relevant time to be considered is the time of trial.

The appeals court noted that there had been prior cohabitation, when the wife moved to New Mexico.  But the evidence also showed that she had purchased another home two minutes away,  The trial court had ruled that the wife “cohabitates,” rather than that she had “cohabitated,” which indicated that the trial court believed she continued to do so at the time of trial.  Since the trial court did not address the purchase of the new house, and had made no findings that the wife’s testimony about it was not credible, this meant that the lower court’s findings were incomplete.  

For this reason, the Court of Appeals reversed and remanded for fact findings on this issue.

No. E2022-00859-COA-R3-CV (Tenn. Ct. App. Sept. 1, 2023).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Alimony Law in Tennessee, and our video, How is alimony decided in Tennessee?

To learn more, see Alimony Modification in Tennessee Law | How to Modify Alimony and our video, How is alimony decided in Tennessee?